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N.S. v. C.E.

Court of Appeals of Ohio, Sixth District, Huron

November 17, 2017

N.S. Appellee
C.E. Appellant

         Trial Court No. CU 2013 00084

          Thomas A. Sobecki, for appellant.


          MAYLE, J.

         {¶ 1} Appellant, C.E. ("mother"), appeals the May 24, 2017 judgment of the Huron County Court of Common Pleas, Juvenile Division, awarding custody of the parties' son ("child") to appellee, N.S. ("father"). For the following reasons, we reverse and remand this matter to the trial court.

         I. Background

         {¶ 2} Mother and father met in 2011 while they were residing in the same halfway house. Mother was at the halfway house after serving nearly two years in prison for two felony convictions. Father was residing there following his release from prison after serving a 13-year sentence for felonious assault. The parties were never married. The child, born June 10, 2013, is their only child.

         {¶ 3} Initially, on April 8, 2014, the juvenile court named mother the residential parent and legal custodian of the child. In July 2014, the court granted father supervised parenting time every other weekend and on holidays. This arrangement continued until November 6, 2015, when father filed a motion to change custody of the child based on mother's drug use, multiple arrests, and unemployment.

         {¶ 4} On January 6, 2016, before the November 2015 custody motion was decided, father filed a request for an emergency custody hearing following mother's arrest for possession of drug abuse instruments. Mother was pulled over in Fremont on January 5, 2016. The child, who was two years old at the time, was in the backseat. During a search, the arresting officer found a needle in the car and another needle and a spoon with heroin residue on it on mother's person. As a result of the arrest, mother was convicted of misdemeanor possession of drug abuse instruments and ultimately served 90 days in jail. The juvenile court denied father's request for an emergency hearing. But following a pretrial on January 28, 2016, the court granted father temporary custody of the child and granted mother supervised parenting time.

         {¶ 5} On February 2, 2017, a hearing on father's November 2015 motion was held before a magistrate. Mother, father, maternal grandmother, maternal grandfather, maternal uncle, paternal grandmother, mother's caseworker, child's counselor, the officer who arrested mother in January 2016, and mother's boyfriend all testified. The testimony included information about mother's drug abuse and positive drug tests; mother's efforts toward rehabilitation during the six months before the hearing, including treatment with Vivitrol shots; mother's criminal record and police interactions since child's birth; the fact that mother's sister, with whom mother occasionally resides, uses illegal drugs and overdosed in September 2016; father's lack of a criminal record since his release from prison and negative drug test results; mother's and father's interactions with the child and with each other; mother's and father's parenting skills and ability to care for the child; mother's and father's employment situations, support systems, and living arrangements; and the parties' inability to communicate.

         {¶ 6} On March 10, 2017, the magistrate issued her decision granting father custody of the child and granting mother parenting time in accordance with the court's standard parenting time schedule. The magistrate found, pursuant to R.C. 3109.04(E)(1)(a), that mother's addiction, volatile relationship with her live-in boyfriend, repeated contacts with law enforcement, incarceration, and disregard for the child's safety by driving him without a valid license constituted a change in circumstances since the initial allocation of parenting rights and responsibilities in 2014. The magistrate further found, pursuant to R.C. 3109.04(E)(1)(a) and (F), that awarding father custody was in the child's best interest, particularly in light of mother's mental and physical health. While the magistrate noted that mother was currently free of illegal substances and actively pursuing sobriety, she could not ignore that mother had only recently made those efforts. Finally, under R.C. 3109.04(E)(1)(a)(iii), the magistrate found that the advantages to the child of changing custody from mother to father outweighed any potential harms because the child had been living with father for a year.

         {¶ 7} Mother filed objections to the magistrate's decision, which the juvenile court overruled on May 24, 2017. The court's judgment entry states, in relevant part,

Following its independent review, the Court finds more than sufficient evidence in the record to justify the Magistrate's Decision that placing the parties' minor child in the legal custody of [father] while affording frequent and continuing parenting time to [mother] is in the child's best interest.

         Notably, the trial court's entry does not address whether there was a change in circumstances or whether the advantages of the change outweigh the potential harms.

         {¶ 8} Mother challenges the juvenile court's decision to reallocate the parties' parental rights and ...

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